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[2024] ACTCA 26
respondent. The appeal was dismissed. The sentences of 27 years for attempted murder and three months for attempted breach of a family violence order, the total effective term of 27 years and 3 months, and...
The Court of Appeal upheld very long sentences imposed after Robertson pleaded guilty to a grave attempted murder of his former partner and a later attempted breach of a family violence order. It found that the primary judge could give a 10 per cent plea reduction rather than the 20 per cent sought, because the offence's seriousness and the size of the resulting reduction mattered, and the actual benefit included first replacing an otherwise-life sentence with a fixed term. The Court also found no error in the consecutive three-month sentence for the later attempted breach or in the 20-year non-parole period. The appeal was dismissed.
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2,338 words · generated 08/10/2026
Robertson appealed sentences imposed by the ACT Supreme Court after he pleaded guilty to attempted murder and attempted breach of a family violence order. The Court of Appeal dismissed the appeal, leaving in place the 27-year term for attempted murder, the three-month term for attempted breach, the total effective term of 27 years and 3 months, and the 20-year non-parole period ([1]-[2], [61]).
3 cited instruments linked from this judgment.
The attempted murder occurred at the victim’s home on 28 September 2022. The sentencing facts, as set out by the Court of Appeal from the primary judgment, describe Robertson listening outside the victim’s bedroom before entering the house, taking her phone, and going to the kitchen for a large carving knife. He returned to the bedroom and stabbed the victim repeatedly. After she escaped to the backyard and called for help, he used a flame from burning paper and spray cans to burn her ([13]). The victim was taken to hospital with critical injuries. The sentencing judge recorded 11 stab wounds and burns to 21 per cent of her body surface area, and found that the attack had life-altering consequences ([16]).
The later offence was an attempted breach of a family violence order. While in custody after his arrest, Robertson tried to send the victim a Christmas card through the neighbour who had witnessed the assault and called police. The card was intercepted ([42]-[43]). The sentencing judge imposed a three-month term, wholly consecutive to the attempted-murder sentence. The total non-parole period was 20 years ([1]-[2]).
The two appeal grounds were that the guilty-plea reduction for attempted murder was too small and that the individual sentences, aggregate sentence and non-parole period were manifestly excessive ([4]). The Court rejected both grounds. Its task was not to choose the sentence it would have imposed in the first instance, but to decide whether an error of the kind permitting appellate intervention had been established ([7], [35]).
The Court first examined the guilty-plea reduction. The applicable provision, s 35 of the Crimes (Sentencing) Act 2005 (ACT), directs a sentencing court to consider the fact and timing of a guilty plea, whether it arose from charge negotiations, the seriousness of the offence and its impact on victims. It permits a lesser penalty, but s 35(6) provides that the lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence ([19]-[22]).
The Court stressed that there is no fixed discount tariff for pleas entered at particular stages. Sentencing practice may provide a usual range and promote consistency, but deciding the appropriate lesser penalty remains an evaluative exercise that weighs the statutory considerations ([23]-[26]). Timing matters, and the utilitarian value of a plea is important. But the percentage is not assessed in isolation from the offence and resulting sentence.
Robertson pleaded guilty immediately after a criminal case conference. The primary judge acknowledged the value of the plea, particularly because it spared the victim the trauma of cross-examination. The judge nevertheless considered that a 20 per cent reduction would result in a sentence lower than necessary to reflect the gravity of the offending, and applied a 10 per cent discount to a 30-year term ([27]).
The Court of Appeal found no error in that reasoning. It accepted that the seriousness of the offence could provide a discretionary reason to depart from customary discount ranges, particularly where a customary percentage applied to a very long sentence would produce a very large reduction ([25]-[31]). The Court also emphasised the actual operation of the sentence: the primary judge had concluded that, without the guilty plea, life imprisonment would have been imposed, then fixed a 30-year term before applying the 10 per cent reduction. The result therefore involved more than a bare 10 per cent comparison with an otherwise-fixed term ([32]). The three-year reduction itself was significant, and the Court found it was not plainly unreasonable when the statutory considerations, including victim impact, were taken into account ([33]).
The manifest-excess ground failed for related reasons. The attempted murder was assessed at sentencing as falling within the worst category, in the legal sense that it was so grave as to warrant the maximum penalty. The Court referred to the principle in R v Kilic: whether an offence reaches that category requires consideration of both the nature of the crime and the circumstances of the offender ([10]). The primary judge had considered the planning, weapons, duration and cruelty of the attack, the victim’s extreme injuries and the family-violence context ([16]). On appeal, the seriousness of the conduct was not challenged as an available finding ([30], [36]).
The Court also considered Robertson’s circumstances. It referred to his prior violence against the same victim, his failure to engage fully with rehabilitative opportunities, and the sentencing judge’s finding of no remorse ([37]-[38]). The Court did not treat the fact that the victim survived as requiring a lower sentence. Attempted murder and murder carry the same maximum penalty in the relevant ACT provisions, and the Court stated that an attempt does not invariably attract a lower sentence than a completed offence. A grave attempt likely to succeed may be punished as severely as the completed offence ([40]).
The Court found that the attempted breach sentence was also open. It took account of the separate timing and nature of the Christmas-card communication, the victim’s circumstances and the protective purpose of family violence orders ([42]-[49]). The breach was committed while Robertson was in custody, and the Court agreed that the two offences involved distinct criminality supporting consecutive terms ([50]-[57]).
Finally, the Court upheld the non-parole period. It described the non-parole period as the minimum time justice requires the offender to serve, considered against sentencing purposes, offence seriousness and the offender’s circumstances ([58]). It held that customary percentages did not determine the answer in a case of this gravity, and noted that the sentencing judge could have declined to set a non-parole period under s 65(4) ([59]).
The judgment does not announce a new statutory test or purport to change existing sentencing doctrine. Instead, it applies provisions of the Crimes (Sentencing) Act 2005 (ACT) and principles drawn from earlier ACT and High Court authorities.
For guilty pleas, the judgment restates that s 35 requires a discretionary assessment rather than a mechanical discount. The timing of the plea is important, and customary ranges help support consistency and predictability. But the statute requires attention to other matters, including seriousness and victim impact, and the resulting lesser penalty must not be unreasonably disproportionate ([19]-[26]). The decision illustrates that an unusually serious offence and a very long starting sentence may justify a reduction outside a customary percentage range. It does not establish a new fixed percentage for attempted murder or for pleas following a criminal case conference.
On appellate review, the judgment applies the established restraint governing discretionary sentencing decisions. A sentence is not set aside simply because an appeal court might have chosen a different one. The appellant must establish a specific error or show that the sentence is so plainly wrong that error can be inferred ([7], [35]). A sentence that differs from sentences in other cases does not, by itself, demonstrate error ([35]).
For multiple sentences, the judgment confirms the totality principle: the aggregate must be just and appropriate for the total criminality, and the court must consider whether one sentence can comprehend the criminality of another ([52]-[55]). The judgment does not replace that case-specific analysis with a general rule for concurrent or consecutive sentences.
The discussion of non-parole periods likewise applies existing principles. The court must determine the minimum time justice requires, taking account of all relevant sentencing purposes, and should not mechanically apply a customary percentage to the head sentence ([58]-[59]). The case demonstrates how seriousness and offender history can weigh heavily in that assessment.
At [29], the Court states: “That there is a departure from a customary range does not of itself establish error.” In plain English, a sentence does not become wrong merely because it falls outside a commonly used discount range. The court must assess whether the discretion was exercised lawfully and rationally in the circumstances.
At [31], the Court explains that the primary judge had a reason to depart from the usual range and was also constrained by the statutory requirement against a disproportionate lesser penalty. The point is that consistency with usual practice matters, but it does not override the statutory requirement to produce a proportionate sentence.
At [32]-[33], the Court looks beyond the 10 per cent figure. It notes that the primary judge first changed an otherwise-life sentence to a fixed term of 30 years, then reduced that term by three years. In plain English, measuring the plea’s benefit solely by the final percentage would miss part of what the sentencing judge had done.
At [40], the Court says that an attempted offence will often receive a lower sentence than a completed offence, “but this is not an invariable rule”. That means survival of the victim does not automatically cap the sentence below one that could be imposed for the completed offence. The seriousness and likely success of the attempt remain relevant.
At [54]-[55], the Court applies the question whether the sentence for one offence can reflect the criminality of another. Here, the attempted breach happened later and involved distinct conduct, so the Court accepted that consecutive sentences could reflect the separate wrongdoing.
At [59], the Court states that general non-parole percentage practices would not reflect the punitive and deterrent purposes of sentencing in this case. In plain English, percentages are reference points, not substitutes for examining the offences and offender.
The decision is most directly relevant to appeals where an offender challenges the size of a guilty-plea reduction after a plea entered at or around a criminal case conference, particularly where the offence is exceptionally serious and the sentence before the discount is very long. It supports examining the complete sentencing process, including whether the judge first adjusted an otherwise-indeterminate sentence to a fixed term, rather than comparing only the final percentage ([27]-[33]).
It is also relevant where an appellant argues that an attempted offence must receive a lower sentence than a completed offence. The Court’s reasoning indicates that this is not an automatic rule, especially where the attempt is grave and the harm caused is extreme ([40]).
The decision may assist in analysing sentences for family-violence offending where the accused has a history of violence against the same victim, the offence occurs in the victim’s home, and the harm is severe. The Court treated the history and escalation of violence, lack of remorse and failure to engage with rehabilitation as relevant circumstances ([16], [37]-[38]).
For totality arguments, the case is relevant where separate offences occur at different times or involve distinct criminality, including an offence committed in custody. It demonstrates that wholly consecutive sentences may be justified where one term cannot adequately reflect the criminality of the other, subject to the overall totality assessment ([50]-[57]).
For non-parole periods, the decision is relevant where a party relies on ordinary percentage practices. It confirms that such practices do not replace an assessment of the minimum period required by justice in light of the offence, offender and sentencing purposes ([58]-[59]).
The case should not be read as prescribing a standard 10 per cent guilty-plea discount for serious offending, a fixed term for attempted murder, or an automatic rule that family-violence sentences be consecutive. Its reasoning is tied to the particular findings, statutory provisions and appeal grounds described in the judgment.
The judgment itself was delivered on 30 August 2024 and does not discuss decisions made after that date. The supplied judgment therefore provides no basis for stating how later courts have treated Robertson v DPP.
Within this decision, the Court used DPP v Robertson [2023] ACTSC 383, the primary sentencing decision under appeal, to identify the sentencing judge’s findings and reasoning. It did not treat that first-instance decision as a separate appellate precedent. The Court also referred to Calatzis v Jones [2024] ACTSC 42 as recognising that individual case circumstances may warrant departure from customary guilty-plea discounts, including where applying a usual percentage to a very long sentence would produce an exceptionally large reduction ([25]-[26]).
The Court’s express reliance was principally on existing authorities concerning appellate restraint, guilty-plea reductions, totality and non-parole periods. Any account of subsequent treatment would require later judgments not included in the supplied material.
The judgment does not define a formula for deciding when a customary guilty-plea discount would produce a reduction too large to reflect the utilitarian value of the plea. It gives this case as an example of a situation in which seriousness and sentence length justified a departure, but stresses that the assessment remains discretionary and governed by s 35 ([25]-[33]).
The decision also does not establish how sentencing courts should quantify the practical benefit of a plea where the alternative sentence is life imprisonment. It explains the sequence used here, moving from an otherwise-life sentence to a 30-year term and then applying a three-year reduction, but does not present that sequence as a general method ([32]-[33]).
On totality, the judgment applies the distinction between offences whose criminality can be comprehended by one sentence and offences that involve separate criminality. It does not specify a general measure of how much accumulation would be appropriate in other combinations of offences ([52]-[57]).
On non-parole periods, the Court referred to general ACT practice that non-parole periods commonly represent 50 to 70 per cent of the total term, but found that customary percentages did not govern this case ([58]-[59]). The judgment does not provide a new numerical range for other cases involving similarly serious offending.
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Robertson v DPP Citation: [2024] ACTCA 26 Hearing Date: 20 August 2024 Decision Date: 30 August 2024 Before: Mossop ACJ, Baker and McWilliam JJ Decision: The appeal is dismissed.
Catchwords: APPEAL – CRIMINAL LAW – appeal against sentence – attempted murder – breach of family violence order – whether discount for plea of guilty inadequate – whether total effective sentence and non-parole period manifestly excessive – where offence of attempted murder fell into “worst category” of offending – where no mitigating subjective factors apart from plea of guilty – appeal dismissed Legislation Cited: Crimes Act 1900 (ACT) ss 12, 12(2) Criminal Code 2002 (ACT) s 44 Crimes (Sentencing) Act 2005 (ACT) ss 34B, 35, 35(2), 35(2)(d), 35(4), 35(6), 35(7), 37, 65, 65(4), 72(2) Family Violence Act 2016 (ACT) ss 8, 43 Supreme Court Act 1933 (ACT) ss 37E(2)(a), 37O, 37O(1), 37O(7) Cases Cited: Blundell v The Queen [2019] ACTCA 34 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 Calatzis v Jones [2024] ACTSC 42; 21 ACTLR 59 Cranfield v The Queen [2018] ACTCA 3 Dalton v The Queen [2015] ACTCA 48; 19 ACTLR 264 Day v The King [2023] ACTCA 39 Director of Public Prosecutions v Padreny [2024] ACTCA 4 DPP v Robertson [2023] ACTSC 383 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Johnson v The Queen [2004] HCA 15; 78 ALJR 616 Lowe v The Queen (1984) 154 CLR 606 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 Nyugen v The Queen [2016] HCA 17; 256 CLR 656 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 Power v The Queen [1974] HCA 26; 131 CLR 623 R v BI (No 4) [2017] ACTSC 71 R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 R v Duffy [2014] ACTCA 53; 297 FLR 359 R v Kilic [2016] HCA 48; 259 CLR 256 R v Miller [2019] ACTCA 25 R v Nicholas; R v Palmer [2019] ACTCA 36 R v Taouk (1992) 65 A Crim R 387 R v Toumo’ua [2017] ACTCA 9 Suksa-Ngachareon v The Queen [2018] NSWCCA 142 Tracey v The Queen [2020] ACTCA 51 Wong v The Queen [2001] HCA 64; 207 CLR 584 Parties: Daryl Alan Robertson (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel Self-represented (Appellant) K L McCann (Respondent) Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 48 of 2023 Decision Under Appeal: Court: ACT Supreme Court Before: McCallum CJ Date of Decision: 12 December 2023 Case Title: DPP v Robertson Citation: [2023] ACTSC 383 THE COURT: Overview of appeal
The appellant in this case has appealed a sentence imposed by McCallum CJ (primary judge) on 12 December 2023 in respect of two offences to which the appellant had pleaded guilty. The appellant was convicted and the sentence imposed was as follows: (a) For the offence of attempt to murder, contrary to s 12 of the Crimes Act 1900 (ACT) (Crimes Act) (CAN 10766/22), a term of imprisonment of 27 years commencing on 28 December 2022 and expiring on 27 December 2049. (b) For the offence of attempted breach of a family violence order, contrary to s 43 of the Family Violence Act 2016 (ACT) (FV Act) (CAN 371/23), a term of imprisonment of 3 months commencing on 28 September 2022 and expiring on 27 December 2022.
The total effective term of imprisonment imposed was 27 years and 3 months. A non-parole period of 20 years was set, commencing on 28 December 2022, and ending on 27 December 2042: DPP v Robertson [2023] ACTSC 383 (primary judgment).
The appellant had pleaded guilty to the offences following a criminal case conference. The terms of imprisonment reflected the following reductions by the primary judge on account of the pleas of guilty: (a) A 10% discount was applied in respect of the attempted murder offence. The term of imprisonment that would have been imposed but for the plea was 30 years: primary judgment at [53]. (b) A 25% discount was applied for the attempted breach of a family violence order. Again, by implication from the sentence that was imposed, the term that would have been imposed was 4 months: primary judgment at [52].
The appellant maintained the following two grounds of appeal: (a) In respect of the offence of attempted murder, the primary judge erred in awarding a discount of 10% for the appellant’s plea of guilty (Ground 1); and (b) Each of the individual sentences, and the total effective sentence and non-parole period were manifestly excessive (Ground 2).
For the reasons outlined below, the appellant has not demonstrated either ground. The appeal must be dismissed. The Court’s power on appeal
Section 37E(2)(a) of the Supreme Court Act 1933 (ACT) (Supreme Court Act) provides for appeals from orders of the court, including an appeal from a single judge. Among the wide powers provided to the Court of Appeal under s 37O of the Supreme Court Act, the Court of Appeal may confirm, reverse or amend the order, giving any order it considers appropriate: s 37O(1). Specifically in criminal matters, the Court may increase or decrease the sentence, or substitute a different sentence: s 37O(7).
However, because the sentence at first instance was a product of a judge’s exercise of discretion, the Court of Appeal may intervene only if a particular type of error is established. This was explained in R v Duffy [2014] ACTCA 53; 297 FLR 359 at [53] as follows: On such an appeal, the Court of Appeal will intervene only if it is satisfied that there has been an error of the type referred to in House v The King (1936) 55 CLR 499. There must be a specific error of fact or law, or an implicit error that is discernible because the sentence is so plainly wrong (so “manifestly excessive” or “manifestly inadequate” or “outside the range of available sentences” or “dramatically inappropriate”) as to compel the conclusion that there has been an error in the exercise of the sentencing discretion, although no specific error can be identified: Dinsdale v The Queen (2000) 202 CLR 321 per Gaudron and Gummow JJ at [22]; Wong v The Queen (2001) 207 CLR 584 at [58]; Hili v The Queen (2010) 242 CLR 520 (Hili) at 58-59.
The attempted murder: a “worst category” offence
As will be seen in the extracts of the primary judge’s reasons below, her Honour formed the view that in respect of the attempted murder offence, the circumstances before the Court constituted an offence in the “worst category” and warranted a term of imprisonment for life, subject only to the taking account of the offender’s guilty plea.
The term “worst case” has a particular meaning at law. It is best described in R v Kilic [2016] HCA 48; 259 CLR 256 (Kilic) at [18] (references omitted): 18. What is meant by an offence falling within the "worst category" of the offence is that it is an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence. Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type. Once it is recognised that an offence falls within the "worst category", it is beside the point that it may be possible to conceive of an even worse instance of the offence. Thus, an offence may be assessed as so grave as to warrant the maximum prescribed penalty notwithstanding that it is possible to imagine an even worse instance of the offence.
At [19]-[20], the High Court cautioned against using the term “worst case” in matters where the offending does not warrant the imposition of the maximum penalty: 19. Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty − as the offending was agreed to be here − a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the "spectrum" that extends from the least serious instances of the offence to the worst category, properly so called. It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being "within the worst category". It is a practice which should be avoided. 20. There is also another reason to avoid use of the expression "the worst category" of an offence. Not infrequently where an offence does not warrant the maximum prescribed penalty, a sentencing judge may observe in the course of his or her sentencing remarks that, although the offence is a serious, or perhaps particularly serious, instance of the offence, it is not within the "worst category". To do so is not inaccurate and it may be thought a convenient form of legal shorthand. But lay persons are unlikely to be familiar with the legal signification of the expression and, as a result, might wrongly take it to mean that the judge has underestimated the seriousness or effects of the offence. In order to avoid difficulties of that kind, sentencing judges should avoid using the expression "worst category" and instead, in those cases where it is relevant to do so, state in full whether the offence is or is not so grave as to warrant the maximum prescribed penalty.
With that understanding, we turn to the reasons at first instance.
The primary judge’s reasons for finding that the attempted murder offence was a “worst category” offence
The primary judge summarised the agreed facts at [4]-[11]. On any view, they make for difficult reading: 4․ The circumstances of the attempted murder were horrific. The offence was committed on the night of 28 September 2022. That evening at about 10:30 pm the victim was at home in her bedroom. She had been speaking with a number of people on the telephone including her son and, before that, her ex-partner. Unbeknownst to her the offender was waiting outside her window and eavesdropping. The statement of agreed facts records that the offender then entered the residence through the front door, removed his pants and walked into the bedroom shouting at the victim. He then snatched her mobile phone. The reason for removing his pants is not explained. He then walked out of the bedroom to the kitchen where he took a large metal carving knife with a blade of approximately 20 centimetres from a drawer. A photograph of the knife (bloodied by the acts that followed) was before me in the evidence at the proceedings on sentence. 5․ The offender returned to the bedroom where the victim had remained on her bed. He shouted at her, held her on the bed and then used the knife to slice her ear, causing her to bleed heavily. She fell to the floor. While she was there, he stabbed her multiple times. She tried to get up but fell between the bed and a cupboard where he continued to stab her to multiple parts of the body. Photographs of the state of the bedroom after that assault were also in evidence before me. 6․ The offender then went back to the kitchen, whereupon the victim took the opportunity to pull herself up and run out the back door leading to her backyard. Photographs of the crime scene show that she left spots of blood and bloody footprints along the way. When she got into the backyard, the victim screamed for help from a neighbour. She repeatedly called the neighbour's name. The neighbour eventually woke up, got dressed and came outside. The victim asked her to call police and an ambulance, which she did. 7․ While the victim was in the backyard, the offender started burning her using a large cylindrical spray can and a piece of newspaper that he had lit on fire using the kitchen stove. It was during that time that the neighbour was on the phone calling 000. The transcript of the 000 call is before me. While I did not hear the audio of the call, even a reading of the transcript reveals that the neighbour made repeated calls upon the offender to stop hurting the victim whilst also attempting to comfort her that help was on its way. 8․ In the meantime, the offender continued to spray flame onto pieces of paper or a newspaper or a rag and use the flame to burn the victim to her face, chest, arms and torso. The flames created by those acts were high enough to be visible over fence height by neighbours. The photographs and footage I have seen show that the fence was a conventional seven-foot fence between houses. The time of the 000 call was 10:36 pm. The police officers arrived at 10:47 pm and found the gate into the premises locked with padlocks. 9․ One of the first officers on scene was Senior Constable Bott. He observed a large wooden gate at the end of the driveway and the offender behind that gateway standing near the carport. Constable Bott could see short bursts of flame and hear a female screaming in pain. Police eventually managed to get into the premises and Constable Bott and another officer approached the offender. During the proceedings on sentence, I was shown the body-worn footage of that exchange. Constable Bott repeatedly called for the offender to come out of the house, eventually entering the house himself. 10․ The offender was found by the other officer inside the bedroom standing behind a double bed. He was observed to have dried blood on his hands and forearms. Police eventually pushed him onto the bed and handcuffed him. Before they were able to contain him, he indicated that he wished to put his trousers on. That is not recorded in the statement of facts but is something I heard on the body-worn footage. 11․ The first paramedic arrived on scene at about 10:54 pm. She could smell burning flesh and observed the victim and her injuries. She assessed the injuries as critical. The victim was taken to The Canberra Hospital in an ambulance where she was triaged as category one, the most serious category, and admitted under the shock/trauma service team.
Statutory framework
This ground involves the application of s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), which is in the following terms (emphasis added): 35 Reduction of sentence—guilty plea (1) This section applies if— (a) an offender pleads guilty to an offence; and (b) based on the information currently available to the court, the court considers that there is a real likelihood that it will sentence the offender to imprisonment. (2) In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters: (a) the fact that the offender pleaded guilty; (b) when the offender pleaded guilty, or indicated an intention to plead guilty; (c) whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty; (d) the seriousness of the offence; (e) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement. Note For who may make a victim impact statement, see s 49. (3) The court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence. (4) … . (5) For subsection (2) (b), the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose. (6) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. (7) …
Section 35(4) and the associated definitions in s 35(7) relate to circumstances where the Court considers the prosecution case was overwhelmingly strong. Those provisions are immaterial here as no submission was made that this was such a case.
Sections 35(2)(d) and 35(6) are highlighted as they are the matters that were of significance to the primary judge’s reasoning in respect of the applicable discount in the present case (set out below).
Section 37 provides that if a “lesser penalty” is imposed due to a guilty plea (among other things), the court must state the penalty, including any shorter non-parole period it would otherwise have imposed. A reason for imposing the lesser penalty is only required if the reduction arises for assistance in administration of justice or assistance given to law enforcement authorities.
Principles guiding the discretionary discount for a guilty plea
The principles applying to discounts for guilty pleas have been recently set out in Director of Public Prosecutions v Padreny [2024] ACTCA 4 (Padreny) at [70]-[74] (with different emphases added here): 70. The applicable discount for a guilty plea is a question of discretion: Cranfield v The Queen [2018] ACTCA 3 (Cranfield) at [37]-[38]. The starting point is that there is no tariff in respect of discounts entered at particular stages. In Miller v The Queen [2018] ACTCA 21; 273 A Crim R 27 (Miller) it was said at [76]-[77]: 76. It may be accepted that it is common, if not customary, in this jurisdiction for a discount of 25% to be given where a plea of guilty was entered at an early stage in the Magistrates Court. It may equally be accepted, as a general principle, that there should be consistency in fixing discounts for pleas of guilty. There is an obvious public interest in offenders and their advisers knowing the range of discount likely to be fixed when a plea of guilty is entered at a particular stage of a criminal proceeding. 77. Those considerations, however, should not lead the Court to effectively impose a tariff in respect of discounts entered at particular stages. Section 35 of the Sentencing Act makes it clear that the considerations that a court should have regard to in considering the lesser penalty that should be imposed by reason of a guilty plea are not limited to the timing of the plea, as important as that consideration is. It is equally clear that the determination of the appropriate lesser penalty is an evaluative exercise which involves the weighing up of a number of relevant considerations. 71․ As discussed in cases such as Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 (Monfries) at [47] and Toumo’ua at [49], utilitarian value of a guilty plea is a primary consideration, as seen through the express words of the Sentencing Act: (a) section 35(2)(b) requires the Court to take into account when the offender pleaded guilty, or indicated an intention to plead guilty; and (b) section 35(5) provides that the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose. 72․ In Monfries, Murrell CJ referred at [47] to the importance of the timing of a plea to the assessment of an appropriate discount. 73. In R v Nicholas; R v Palmer [2019] ACTCA 36 at [49]- [53], the Court of Appeal considered the applicable discounts for guilty pleas entered in various circumstances, as follows …: 49․ In Williams v The Queen [2018] ACTCA at [47], this Court emphasised that, for public policy reasons, it is important that persons considering an early plea of guilty be justifiably confident that their plea will attract a substantial discount on sentence and also understand that, if they delay in entering the plea, the level of discount is likely to be significantly lower. 50․ In Cranfield, the offender had pleaded guilty a week before the trial was due to commence. The Court increased the sentence discount from five to 10 per cent. In R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua), the offender had pleaded guilty after committal to the Supreme Court but before a trial date had been set. The Court of Appeal reduced the sentence discount from 25 to 17 per cent. In Zhao v The Queen [2018] ACTCA 38 (Zhao), the offender had pleaded guilty 12 days before the commencement of the trial as a result of successful negotiations regarding a rolled-up count. The Court confirmed the sentence discount of 10 per cent. 51․ Among others, these decisions illustrate that, in circumstances such as the present, an accused person should confidently expect to receive a discount of 10 per cent—or, perhaps, slightly more if their plea was not entered “on the steps of the Court”. They should expect that, in the case of such a late plea, a larger s 35 discount will only be given where there are unusual circumstances, such as a very weak Crown case or an earlier offer by the accused to plead to the charges, which the Crown accepted at the last minute. 52․ Ordinarily, a discount of 15 to 20 per cent is allowed for a plea entered before or in connection with criminal case conferencing and prior to the setting of the trial date. Absent unusual circumstances, 20 per cent would be the upper limit in relation to a plea of guilty entered at that stage. In Blundell v The Queen [2019] ACTCA 34 at [13] (Blundell), this Court said: It is also vital that persons coming to a criminal case conference do so with confidence that pleas of guilty will attract more than a minimum discount. This confidence should also extend to the community at large, knowing that persons will be treated consistently, in turn enhancing the proper administration of justice. 53․ The converse is also true. It is vital that accused persons who choose to wait to the last minute to enter a plea of guilty appreciate that, absent unusual circumstances, they will not receive a discount that is as high as the discount that they would have received had they pleaded guilty at the criminal case conferencing stage, which usually occurs soon after a matter has been committed to the Supreme Court for trial. 74․ The case of Blundell v The Queen [2019] ACTCA 34, referred to in the above extract, also made the point (at [8]) that while there is no mandated practice of specific plea discounts for different stages of the proceeding (which might be thought to constitute a tariff), there is a usual practice, and s 33(1)(za) of the Sentencing Act mandates that a sentencing court consider current sentencing practice when deciding an appropriate sentence. This includes where principles have been laid down for the exercise of discretionary discounts.
The reasoning process in respect of the guilty plea
The reasons of the primary judge were contained in [39]-[42] of the primary judgment (emphasis added): 39․ As I have already indicated, but for the plea, I would have had no hesitation in imposing a sentence of imprisonment for life. I considered whether it would be appropriate to impose that sentence anyway. However, Mr Chen's submissions have persuaded me that it is important for the Court, for the purposes of consistency in sentencing, to pay due regard to the well-established principle that an offender is ordinarily entitled to a discount on a sentence for the utilitarian value of pleading guilty. 40․ That value was high in the present case, sparing (as it did) the victim from what would undoubtedly have been an extremely traumatic ordeal of being cross-examined. It is appropriate for the Court to acknowledge that utilitarian value and not to send a message to offenders that there will be or may be no recognition for a timely plea. 41․ In the present case, the plea to the charge of attempted murder was entered immediately upon the conclusion of a criminal case conference. Mr Chen submitted, in accordance with orthodox principle, that a discount in the order of 20 per cent could be allowed on that basis. 42․ In my assessment, a discount of that order would be too high. That is because, when the numbers get as large as they will necessarily be for the appropriate term of imprisonment for this offence, a discount of 20 per cent would, in my assessment, reduce the sentence to something less than the period I consider necessary to reflect the seriousness of the offence. For that reason, I propose to allow a discount in the order of 10 % for the plea.
Applying the authorities set out above, there was no error in the approach taken by the primary judge, either as to principle or as to the extent of the lesser penalty imposed.
First, it is significant that not only is the sentencing process discretionary overall, but the discrete choice as to what lesser penalty is applicable itself involves discretion. That there is a departure from a customary range does not of itself establish error. This is a clear case where, because of the gravity of the offending, a sentence of imprisonment that was proportionate to the severity of the conduct was inevitably one of considerable duration, and this in turn provided a discretionary reason to depart from commonly applied ranges.
Secondly, the reasons provided by the primary judge for applying the 10% discount accorded with principle and the legislative requirements. The primary judge had previously discussed the nature and circumstances of the offence, finding that overall, the objective and subjective factors (including the family violence context, the previous repeated assaults on the victim, the lack of remorse) put the offending in a category that met the description of the “worst case”. That was a finding that was open to her Honour to make, and no complaint was made about it on appeal.
Moreover, the gravity or seriousness of the offending is a matter to which the primary judge was statutorily obliged to have regard. Her Honour expressly found that to apply a discount at the top of the customary range would produce a lesser penalty that was unreasonably disproportionate to the seriousness of the offence. That view had a consequence under s 35(6) of the Sentencing Act (extracted at [19] above). Not only was there a reason to depart from ordinary ranges, but her Honour was prevented by statute from taking an approach that produced a disproportionate result.
Ground 2: Were the individual sentences, and the total effective sentence and non-parole period manifestly excessive?
This ground involves a complaint in respect of the length of each of the two sentences imposed individually, and their length cumulatively (the total effective sentence), as well as a separate consideration of whether the non-parole period was manifestly excessive. Applicable principles in respect of manifest excess
The principles in relation to assessing whether a sentence is manifestly excessive are well-established. The following are of significance to the present ground: (a) Consideration of whether a sentence is manifestly excessive occurs in the context of the maximum penalty, the standards of sentencing in respect of the offence, the relative objective seriousness of the offence and the personal circumstances of the offender: Tracey v The Queen [2020] ACTCA 51 at [38]. (b) The Court’s task on appeal is not to decide whether it would have exercised the discretion differently. Appellate intervention is not justified simply because an appellate court may have a different view as to the most appropriate sentence: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28]. The test is whether the length of the sentence was unreasonable or plainly unjust: Dalton v The Queen [2015] ACTCA 48; 19 ACTLR 264 at [18]. (c) Where the sentence is markedly different from sentences that have been imposed in other cases, that again does not of itself bespeak error: Wong v The Queen [2001] HCA 64; 207 CLR 584 (Wong) at [58]; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 (Hili) at [59]. (d) Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was a misapplication of principle by the sentencing judge, although when and how the error occurred is not apparent from the judge’s reasons: Wong at [58]; Hili at [59]-[60] and [75]-[76]. The attempted murder offence
The nature and objective seriousness of the conduct has already been discussed in the context of Ground 1. As submitted by the respondent, the suffering of the victim was extraordinary. The physical, emotional and psychological harm caused by the appellant’s offending had a devastating impact on the victim. The primary judge exercised sensitivity in relation to the victim’s impact statement that was read to the court and the full extent of the victim’s medical conditions and her suffering. The same course will be adopted here. The absence of detailed consideration in this judgment of the consequences for the victim is not to be taken as minimising the harm or giving it less than the full weight it deserves.
The appellant had little to no mitigating circumstances, in that he was a recidivist violent offender, who had previously been convicted for violent offences against the same victim. The evidence before the primary judge established that the appellant had failed to engage fully with the rehabilitative opportunities which had been provided to him.
As for the appellant’s lack of remorse, it is difficult to find the words to address or explain the apparent absence of regret, or indeed any genuine feeling approaching it, by a human being who has inflicted so much harm on a victim. The callous cruelty that emerged on the evidence made it plainly open to the primary judge to find that the appellant had no remorse (as her Honour did at [46]). In addition to the contemporaneous evidence from the body worn camera footage which the primary judge had earlier considered, her Honour had been provided with a pre-sentence report. Among other things, it reported the appellant’s attitude to the offences. The appellant is reported to have “felt bad” upon seeing the victim’s injuries, and then stated that a way of preventing his unlawful behaviour from occurring again in the future was to find a more reliable partner, as her actions were the cause of his offending behaviour. The lack of insight is disturbing.
The total effective sentence
In terms of the structure of the two individual sentences, the primary judge deliberately structured the sentences so that they were to be served entirely consecutively. The reason for doing that was explained at [52] of the primary judgment as being “to give effect to the statutory intention that such sentences when committed by a person in custody should not be served concurrently with earlier sentences.”
That was a reference to the fact that the appellant had sent the Christmas card while he was in lawful custody following his arrest for the conduct that constituted the attempted murder offence. Section 72(2) of the Sentencing Act applied, which relevantly provides that in the absence of a direction to the contrary, the primary sentence must be served consecutively with the existing sentence of imprisonment.
As to whether the primary judge should have made a direction to the contrary, the relevant principles are: (a) A sentencing judge is required to consider the appropriate sentence for each offence and then turn to questions of concurrency or accumulation and totality: Pearce v The Queen [1998] HCA 57; 194 CLR 610 (Pearce) at [47]. (b) The totality principle requires the court, in sentencing an offender for multiple offences, to ensure that the aggregate term it imposes is “a just and appropriate measure of the total criminality involved”: Postiglione v The Queen (1997) 189 CLR 295 (Postiglione) at 307-308. While this has sometimes been described as the Court avoiding an otherwise crushing burden of an aggregation of sentences (Postiglione at 308), the principle does not apply only in such cases: Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [22]. (c) The total effective sentence and non-parole period required to be served must accurately reflect the overall criminality comprised in the totality of offences. It must have regard to an offender’s subjective mitigating factors and must not be excessive: Nyugen v The Queen [2016] HCA 17; 256 CLR 656 at [64]; Mill v The Queen (1988) 166 CLR 59 at 63.
It is convenient to refer to the above principles as summarised in two cases at appellate level in this jurisdiction. The first is R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 at [92]: There is no single correct approach to the structuring of multiple sentences, and the totality principle can be implemented in a variety of acceptable ways: Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19, at [56]. In determining questions of accumulation or concurrence, [the court is] required to look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill v The Queen (1988) 166 CLR 59. A sentence should not be ‘crushing’ in that it induces a sense of hopelessness and destroys prospects of rehabilitation, or too severe as a result or accumulation (noting the severity of a sentence may increase at a greater rate than the increase in its length): R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [16]- [17]. Against these considerations, a sentence should not lead to a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences, or that an offender is being offered a discount for multiple offending: O’Brien v The Queen [2015] ACTCA 47 at [26]. Making two counts wholly concurrent may reveal error in that to do so fails to take account of the differences in the conduct which were the subject of punishment on each count: Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [49].
Was the non-parole period manifestly excessive?
As stated in Padreny at [151]-[152], the principles dealing with the setting of a non-parole period are set out comprehensively in Toumo’ua at [94]-[103] and the authorities there-cited. Without repeating the detailed consideration of that decision, the following principles guide the exercise of the discretion: (a) The Court is required to set a non-parole period when imposing a total term of imprisonment of one year or more: s 65 of the Sentencing Act, save if the Court considers that it would be inappropriate to set a non-parole period having regard to the nature of the offence or offences and the offender’s antecedents: s 65(4) of the Sentencing Act. (b) The purpose in setting a non-parole period is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence: Power v The Queen [1974] HCA 26; 131 CLR 623 (Power) at 629. (c) The discretion is wide, but there must be an “appropriate relationship” between a head sentence and the associated non-parole period: Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 610. (d) A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender’s subjective circumstances. It is the minimum period of imprisonment that justice requires to be served: Power at 627; Lowe at 615. (e) Specifically, the deterrent and punitive effects of a sentence should be reflected both in the head sentence and in the minimum term. While other objectives (such as rehabilitation) may take on more significance, the sentence must be of a severity appropriate in all the circumstances of the offending. (f) Ordinarily, a non-parole period should constitute a substantial part of the total sentence: Toumo’ua at [103]; see also MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [49], where the Court went on to state that in the ACT, non-parole periods generally constitute 50 to 70 per cent of the total term.
The non-parole period imposed represented a substantial portion of the sentence. Here again, this was a case where general custom as to percentages would not have reflected the deterrent and punitive purposes of sentencing. Indeed, the nature of the offence and the offender’s antecedents were such that it would have been open to the primary judge to decline to set any non-parole period under s 65(4) of the Sentencing Act. This aspect of the sentence is similarly without error.
For those reasons, given the nature of the offences and the proper application of the relevant sentencing principles, it has not been demonstrated that the individual sentences, the aggregate sentence or the non-parole period imposed were manifestly excessive. Ground 2 fails.
Conclusion and Orders
(1) The appeal is dismissed. I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date:
Robertson
DPP [2024] ACTCA 26
(1984) 154 CLR 606
(1988) 166 CLR 59
(1997) 189 CLR 295
(1936) 55 CLR 499
(2000) 202 CLR 321
(2001) 207 CLR 584
(2010) 242 CLR 520
The appeal was dismissed. The sentences of 27 years for attempted murder and three months for attempted breach of a family violence order, the total effective term of 27 years and 3 months, and the 20-year non-parole period remained undisturbed ([1]-[2], [61]).
The grounds of appeal each require an understanding of the seriousness of the offences, the seriousness of the conduct constituting the offences, the impact on the victim and the subjective features of the appellant. Accordingly, it is preferable to deal first with the reasons of the primary judge before specifically addressing each ground of appeal.
The primary judge then referred to the additional evidence of body-worn camera footage taken from police who attended the incident. It was convenient at that point for the primary judge to refer briefly to the offender’s lack of remorse, a consideration which her Honour developed later in the reasons. The primary judge stated at [13]: …there is not the smallest indication on the part of the offender of his having any feeling for the victim, whether jealous rage or otherwise. The body-worn footage from Officer Carnell shows the immense suffering of the victim at that time.
The primary judge then dealt with the objective seriousness of the offending (at [16]- [36]), which included that the offending was committed in breach of a good behaviour order for an offence of common assault on the same victim, and that the offences were family violence offences (see also at [2]-[3]). This part of the primary judgment will be set out in full for two reasons: (a) To demonstrate that the primary judge properly understood the “worst category” label as one that required an assessment of whether the offence (both the nature of the objective conduct and the circumstances of the offender) was so grave as to warrant the maximum penalty (see in particular [32] of the primary judge’s reasons extracted below); and (b) To show the full extent of the matters that informed the primary judge’s assessment in finding that the offence was of such a kind.
The material considerations informing the primary judge’s assessment are emphasised. The primary judge’s reasons were as follows: 16․ It is necessary to make an assessment of the objective seriousness of the offences. As to the offence of attempted murder, the prosecutor submitted that the offence falls within the worst category. The prosecutor’s written submissions recited a number of factors said to support that conclusion. They were, first, that the offence involved a degree of premeditation, having occurred in the context that the offender, unbeknownst to the victim, was listening to her phone conversations outside her bedroom before then going inside and grabbing a knife and walking into her bedroom to commence the attack. 17․ Secondly, the prosecutor relies on the use of multiple weapons to inflict multiple potentially life-threatening injuries. They included the knife with which the offender inflicted 11 cuts or stab wounds and multiple spray cans with which the offender inflicted multiple serious burns by lighting a piece of paper or a rag on a gas stove and then using that flame to set light to the contents of the cans. As submitted by the prosecutor, the use of those weapons and the period for which the offence continued make clear the offender’s intention to kill which, of course, he has admitted by his plea of guilty. 18․ Thirdly, the prosecutor relies on the fact that the offence involved a sustained and tortuous attack. So much is clear from the facts I have recited. 19․ Fourthly, the prosecutor relies on the fact that the manner of death would have been horrific, had the attempt been successful. She submitted that it was only the intervention of police that prevented the victim from dying and that it would have been a terrifying and horrific death. 20․ Fifthly, the prosecutor identified the fact that the victim needed life-saving treatment, without which she likely would have died. The victim’s injuries and ongoing medical conditions are set out in detail in a report prepared by Dr Van Dieman tendered by the prosecution. I made a non-publication order in respect of the contents of that report and will not recite its contents today. It is enough to say that the submission that the victim had life-saving interventions at hospital is well-founded by the contents of that report. The injuries included the 11 stab wounds to which I have referred. Furthermore, it was assessed that the victim had been burned to 21 per cent of her body surface area. The manner in which that assessment is carried out and the nature of the burns is addressed in detail in Dr Van Dieman’s report. 21․ Sixthly, the prosecution relied upon the fact that the offending occurred in the victim’s home, where she is entitled to feel safe. It was submitted in that context that the offending was an extreme example of family violence. I will return to consider the mandatory considerations for family violence offences. 22․ Seventhly, the prosecution relied upon the fact that the victim was vulnerable, being a person who had been subjected to violence by her intimate partner, the offender, over a long period of time. 23․ Finally, the prosecution relied upon the fact that the effect on the victim was and is profound. The prosecution submissions recited the detail of the effect the offender’s attack had on her. Again, for the reason I have indicated, I will not repeat that detail in this judgment. It is enough to say that I accept, as submitted by the prosecutor, that the offence had a life-altering impact on the victim. She has been in hospital since the night of the offence. She wished to attend court yesterday to read her victim impact statement but, as I was informed, was not considered strong enough to be allowed to leave the hospital for that purpose. Accordingly, she has had to observe the proceedings by AVL. The prosecutor submitted and identified evidence to support the proposition that, prior to the offence, the victim was living independently and could engage in activities of daily living. She is now an applicant through the NDIS for 2 to 1 (that is, two carers at all times) 24/7 care on an ongoing basis. 24․ Mr Chen, who appeared for the offender, accepted that the offence was very grave. However, he relied on three factors which he submitted take the offence outside the worst category. First, he submitted that there was only a very limited degree of premeditation. The submission raises an interesting question as to the comparative seriousness of a planned crime and so-called crimes of passion. It may be accepted that an attempted murder by a paid assassin would fall within the worst category. How is such an offence to be compared with the present offence? 25․ As I have already noted, it is a family violence offence, which means that I am required to have regard to the mandatory considerations set out in s 34B of the Crimes (Sentencing) Act. Importantly, those considerations include the family violence context of the offending. In the present case, that includes the fact that the offender had previously repeatedly assaulted the victim and had, by way of penalty for those offences, been required to undertake rehabilitation. First, in 2017, he was sentenced for an offence in which he threw a jug at the victim’s head, causing her to bleed profusely and as a result of which she said she felt she had lost consciousness. The offender then punched her in the nose, giving her a broken nose. The reason stated in the transcript was that he suspected she was speaking to other men. 26․ Then, in 2021, he was sentenced for an offence which occurred when he threw or swung a bag at the victim, hitting her in the left upper arm. She attended hospital for that offence. 27․ The breach of the good behaviour order relates to the offender’s failure to comply with a requirement by Corrective Services that he complete a course to address his anger management. 28․ Mr Chen submitted that a premeditated offence is more serious because it involves harbouring an intent to kill in a cold, detached, calculated way. He submitted that it is the degree of commitment to the crime in harbouring an intention to kill that makes it so serious. The submission has some force, certainly, in explaining the degree of seriousness of a contract killing. Mr Chen also noted that such offences (contracts to kill) are harder to detect and involve careful planning. 29․ But here, the offender harboured such precious concern for himself and such little regard for the victim that he lurched from rage to jealous rage, from assault to bloody assault in what became an inexorable march towards murderous intent. The matters mentioned in the preamble to the Family Violence Act, which are mandatory considerations in the present sentencing task, require the court to hold such men accountable. 30․ In my assessment in the present case, harbouring such contempt for the value of a supposed loved one’s life, knowing from past experience that it is a hair trigger for jealous rage, is no less morally culpable than harbouring a calculated intent to kill. 31․ The second matter relied upon by Mr Chen which he submitted takes the offence out of the most serious category is the fact that the victim didn’t die. As I think Mr Chen accepted during oral submissions, as a matter of law, that submission cannot be accepted. The offence is attempted murder. It necessarily involves a situation where the victim did not die and yet carries the same maximum penalty as the offence of murder, namely, imprisonment for life. 32․ The prosecutor referred to a number of authorities which accept the proposition that an attempted murder can be more serious than a murder. Mr Chen nonetheless maintained the submission at the hearing of the proceedings on sentence that the injuries suffered by the victim could have been worse. That reflects a wrong approach, the worst possible case being one which falls within a class that should earn that description rather than the worst possible set of circumstances that human ingenuity can imagine. In any event, I do not accept the submission. As I have indicated, the victim has suffered terribly. 33․ Thirdly, by way of response to a submission put by the Crown, Mr Chen made a submission concerning the difference between the victim's living circumstances now and before the offence. I have already noted the Crown's reliance on the fact that the offence had a life-altering impact on the victim, resulting in her now needing effectively fulltime care by two carers. Mr Chen's response to that submission was that, although he accepted there was some impact on the victim caused by the offence, it was necessary to consider the fact that, prior to the offence, the victim had some disabilities which also required support. He submitted that the fact that the victim is now seeking access to the NDIS is not evidence that the offending has rendered her unable to care for herself; it simply shows that she is seeking to transfer from reliance on informal care to formal care. 34․ I reject the submission. The material before me plainly establishes, and I am satisfied beyond reasonable doubt, that, as a direct result of the offence, the victim now suffers very serious consequences which will preclude her from ever returning to the level of independent living the evidence establishes she enjoyed before the commission of the offence. 35․ The prosecutor tendered an updated medical report dated 4 December 2023 describing the current treatment of the victim over the last three weeks, focusing primarily on difficulties with her breathing and the attempts made by the respiratory team to support her respiration with a BIPAP machine. In short, the evidence establishes that, for reasons plainly directly associated with the offence, the victim has difficulty tolerating that machine. The updated report concludes with the following: [The victim] continues to demonstrate ongoing but gradual decline in her physical functioning, particularly her respiratory status and mobility and mental health. She has, thankfully, not had any acute deterioration but remains at high risk of doing so. The focus of her inpatient stay currently revolves around ongoing medical optimisation and also discharge planning. 36․ Having regard to those considerations, but for the fact that the offender has pleaded guilty to the offence, I would have imposed the maximum penalty. I am satisfied that the offence plainly falls within the worst category of offending of this kind. Ground 1: Did the primary judge err in awarding a discount of 10% for the appellant’s plea of guilty in respect of attempted murder?
The appellant’s first complaint was that a discount of greater than 10% should have been applied for the guilty plea entered in respect of the attempted murder offence. Before the primary judge, the appellant sought a discount of 20%.
As will be explained, there was no error in either the approach taken by the primary judge, or the ultimate discount given.
It is significant that the authorities repeatedly refer to the “ordinary case”, and a “commonly applied discount”, with a view to predictability and therefore consistency, while simultaneously stating that there is no mandated practice or rule. It should be emphasised that what constitutes a “significant reduction” in sentence must necessarily vary from case to case.
In Calatzis v Jones [2024] ACTSC 42; 21 ACTLR 59 at [38], having also considered Blundell v The Queen [2019] ACTCA 34, R v Toumo’ua [2017] ACTCA 9 (Toumo’ua), R v Miller [2019] ACTCA 25, Cranfield v The Queen [2018] ACTCA 3 and R v Nicholas; R v Palmer [2019] ACTCA 36, Mossop J noted that the authorities, both in this jurisdiction and in NSW, recognise that the individual circumstances of a case may provide a discretionary reason to depart from the common discounts referred to above. His Honour gave a number of examples, including the following at [39]: A further category of cases is where the offending is very serious and warrants a very long sentence. In those circumstances, the application of a usual level of discount will, in turn, generate a very large discount. Although that generates a very strong incentive to plead guilty, it may be considered too great a discount to properly reflect the utilitarian value of the plea and to have the effect of reducing the sentence in a manner inconsistent with the purposes of sentencing. That may warrant the giving of less than the usual level of discount. An example of such a case appears to be DPP v Robertson [2023] ACTSC 383 at [42].
As Mossop J recognised, in some cases, it is relevant to consider the percentage by which the sentence is to be reduced. However, in other cases, particularly where the head sentence is a long one, it may be that the actual period of the reduction will be more important in giving effect to the principled exercise of the discretion. Section 35 itself does not speak of percentages or even discounts. It talks about lesser penalties and requires that they bear a proportionality to the seriousness of the offence.
Thirdly, close consideration of the reasons demonstrates that the appellant in fact received a more significant benefit than a simple 10% discount. The primary judge made it very clear at [51] of the primary judgment that but for the guilty plea, the term imposed would have been life imprisonment (being an indeterminate sentence). The 10% discount followed the primary judge first fixing what would have been an indeterminate sentence to a sentence of 30 years. Accordingly, the approach taken by her Honour resulted in a reduction of the sentence that would otherwise have been imposed that was greater than a bare 10% discount.
Finally, and perhaps most obviously, putting aside the application of s 35(6) and the reduction of an indeterminate sentence to a fixed term of 30 years, sight cannot be lost of the true import of the 10% discount that was applied. A period of 3 years constitutes a significant reduction in the sentence. When the impact to the victim and the other matters referred to in s 35(2) of the Sentencing Act are properly taken account of, as they must be, such a discount was not plainly unreasonable. On the contrary, the lesser penalty imposed was well open to the primary judge within the exercise of her Honour’s discretion. Accordingly, no error is established.
Otherwise, her Honour demonstrated the proper understanding and application of the sentencing objectives at [49]-[50]. In circumstances where the maximum penalty was life imprisonment and where the appellant received not only a (lesser) fixed term of imprisonment but the opportunity to apply for parole, the primary judge’s sentence in respect of the attempted murder offence was open to her Honour to make, for the reasons her Honour gave.
The appellant submitted that there were people who had committed murder who were serving sentences that were shorter than the term imposed in respect of him. Both attempted murder and murder attract the same maximum penalty (life imprisonment): s 12(2) of the Crimes Act and s 44 of the Criminal Code 2002 (ACT). Whilst it is often the case that an attempt will attract a lesser sentence than if the offence had been committed, this is not an invariable rule: see R v BI (No 4) [2017] ACTSC 71 at [40], and the cases cited therein. In particular, where the attempt is grave, and was likely to succeed in effecting the substantive offence, the attempt may be punished as severely as a completed offence: R v Taouk (1992) 65 A Crim R 387 at 391. In the present case, for the reasons outlined above, the attempt was grave, and the harm caused extreme. It was well open to the primary judge to conclude that the appropriate sentence, prior to imposing a discount for the plea of guilty, was the maximum penalty prescribed by law.
Accordingly, no error of manifest excess is established. The attempted breach of family violence order offence
The facts of the attempted breach were that a family violence order was made on 24 November 2022 and served on the appellant on 25 November 2022. In December 2022, the appellant sought to communicate with the victim by sending her a Christmas card via the neighbour who witnessed the attempted murder and called the police, some weeks after the attempted murder, wishing the victim a Merry Christmas and telling her that he missed her and that he still loved her. Upon seeing who the card was for and who it was from, the neighbour rang the police, and the communication was intercepted.
The primary judge described the facts constituting attempted breach of the family violence order at [15] of the sentencing reasons: The facts of the attempted breach of the family violence order are that, extraordinarily, some weeks later, the offender attempted to send the victim a Christmas card. I cannot be satisfied beyond reasonable doubt that this act was deliberately cruel and manipulative, although it certainly has that appearance. What it does reflect is an extraordinary and inexplicable disregard on the offender’s part for his conduct and its impact on the victim.
The primary judge dealt briefly with the objective seriousness of that conduct. Her Honour accepted that the offender was not to be punished for that offence in a way that involved double punishment for the offence of attempted murder but considered that the two could not be completely divorced, saying (at [37]), “it would be wrong, in my view, to regard that offence in isolation of the circumstances that led up to it.” The primary judge accepted that no sentence other than a term of imprisonment was appropriate in respect of that offence, explaining (at [38]) that, “Had the card reached the victim, it would have been extremely distressing for her to receive a Christmas wish from a man who had wreaked such harm in her life.”
The subjective factors have already been referred to above and similarly apply here. The maximum penalty of the offence was 5 years’ imprisonment. The primary judge referred to denunciation and deterrence as being important sentencing purposes. The primary judge also found (at [50]) that based on the appellant’s prior behaviour (recalling that this included breaches of family violence orders against the same victim) and apparent attitude to the offences, the appellant may be beyond redemption. This finding was expressly one that was not made lightly and on the material before the Court, it was open to her Honour to make. It explains why nothing but a sentence of imprisonment was appropriate in the circumstances of this appellant.
As to the term of three months, given the seriousness with which the courts treat breaches of family violence orders, there can be no doubt that such a sentence was well-within the range of available sentences in the circumstances of this case.
The consistent message of the courts, now with the legislative mandate to which the primary judge referred, is that perpetrators of family violence should understand that the consequence of their conduct can and will include being sentenced to periods of full-time imprisonment and that this extends to those who breach family violence orders, even if the breach itself does not involve physical harm. It must be remembered that family violence is defined in s 8 of the FV Act to include emotional or psychological abuse.
The primary judge appropriately referred (at [3]) to the provisions of s 34B of the Sentencing Act (in respect of family violence offences) as reflecting a clear legislative mandate for courts to regard the repetition and escalation of domestic violence as an extremely dangerous pattern of offending warranting stern punishment. A breach of a family violence order, whether it involves actual violence or attempted communication, as was the case here, equally requires denunciation and punishment because it is the primary means by which the justice system seeks to protect those at risk. The courts play an important role in ensuring that such orders are effective as a deterrent. As was stated in Suksa-Ngachareon v The Queen [2018] NSWCCA 142 (Suksa-Ngachareon) at [132] in relation to a similar scheme in NSW for apprehended domestic violence orders, the legislative intent of such schemes is: …to permit a court to restrain the conduct of an individual who poses a risk to a person with whom he or she is or was in a domestic relationship. If the authority of the courts in making these orders is simply ignored, … the law and the courts are diminished, and the capacity for the courts to protect vulnerable individuals is impeded. Conduct which involves deliberate disobedience of a court order must be treated as serious…
For those reasons, we are not persuaded that the sentence imposed in respect of the breach of family violence order was manifestly excessive.
The second is Day v The King [2023] ACTCA 39, where the Court of Appeal discussed concurrency and accumulation principles for an aggregate sentence by reference to the principle of totality of criminality at [67], citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27], as follows (emphasis added): In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.
The emphasised words encapsulate the respondent’s submission on this appeal, namely that there was no basis for the primary judge to afford any concurrency between the two sentences. Each offence occurred at different times and involved different criminality which could not be reflected in a single concurrent (or even largely concurrent) term. Those circumstances provided a reasoned basis for the primary judge declining to make a direction that the sentences be served concurrently, either in part or in whole.
Any argument that there was a case for a degree of adjustment with regard to concurrency falls away when the primary judge’s structure is considered in total – that is, when regard is had to the fact that the primary judge considered it appropriate set a non-parole period in circumstances where it was equally open to a sentencing judge, faced with this appellant’s crimes and subjective circumstances, to order life imprisonment without parole.
As the above demonstrates, the approach taken by the primary judge in the structure of the sentence was an orthodox application of principle and we have not discerned any error in reviewing the issue of concurrency and accumulation of penalty.